I. Introduction

As the effects of COVID-19 surge, telecommuting/remote working has been dramatically increasing around the globe in almost all sectors since the beginning of the pandemic. In response to this, Turkish Ministry of Family, Labor and Social Services has introduced the Regulation on Remote Working, which was published in the Official Gazette dated March 10, 2021 and numbered 31419 ("Regulation").

The Regulation sheds light on miscellaneous issues concerning telecommuting, such as conditions for converting the employment agreement in place into a telecommuting agreement, the type of works incompatible with working remotely, and precautions regarding occupational health and safety.

II. Provisions of the Regulation

(i) Form and Content

According to Article 5 of the Regulation, employment agreements with respect to telecommuting shall be made in writing and include the following:

a. Description of the work;

b. The way that work is conducted;

c. Time and place of work;

d. Remuneration and matters related to the payment of remuneration;

e. Work materials and equipment provided by the employer and obligations related to safeguarding of these;

f. Provisions on communications between the employer and the employee; and

g. General and special work conditions.

(ii) Procurement and Usage of Equipment and Work Materials

As per Article 7 of the Regulation, unless decided otherwise in the employment agreement, equipment and work materials, which are necessary for the telecommuting employee to produce goods and services, shall be procured by the employer in principle. If work materials are procured by the employer, a list of work materials which include the monetary value of these materials on the date they were handed to the employee shall be provided by the employer to the employee. The employer shall keep a signed copy of the said list in the employee`s personnel file. In case the list of work materials is already included in the employment agreement, or issued as an annex to it, there will be no need to issue an additional written list of work materials.

(iii) Determining the Working Hours

With regard to working hours of the telecommuting employee, Article 9 of the Regulation provides that the time period and duration of telecommuting shall be set out in the employment agreement. Parties may alter the working hours, provided that limitations prescribed in the legislation are complied with. Overtime work may be done upon the written request of the employer and acceptance of the employee, and in compliance with the legislation.

(iv) Data Protection

Rules concerning the protection of data are stated in the Article 11 of the Regulation. Accordingly;

a. The employer shall inform the telecommuting employee of the company rules on the protection of data concerning the workplace and the work being done, the sharing of such data, as well as the relevant legislation and take the necessary precautions in order to protect such data.

b. The employer shall set out the definition and scope of the data to be protected, within the agreement.

c. The telecommuting employee must comply with the firm rules determined by the employer in order to protect the data.

(v) Precautions Regarding Occupational Health and Safety

Pursuant to Article 12 of the Regulation, the employer is under obligation to, taking the nature of the work conducted by telecommuting employee into consideration, inform the telecommuting employee of the precautions regarding the occupational health and safety, provide the employee with the necessary training, supervise their wellbeing and take the necessary occupational safety precautions with respect to the equipment provided.

(vi) Works Incompatible with Telecommuting

Article 13 of the Regulation prescribes two exceptions with respect to telecommuting:

a. Telecommuting shall not be allowed in works that involve working with hazardous chemicals and radioactive substances, processing these substances or working with the wastes of these substances, working processes that have a risk of exposure to biological factors;

b. Public institutions and organizations shall determine which of their units, projects, facilities or procured services that have strategic importance in terms of national security, and therefore would not be suitable for telecommuting.

(vii) Transition to Telecommuting

The Regulation also sets forth the rules and procedures regarding the transition from working at the workplace to telecommuting, and vice versa. As per Article 14(2) of the Regulation, a request for a transition to telecommuting or return to working at the workplace by the employee is subject to following:

a. The request shall be made in writing.

b. The request shall be considered by the employer in accordance with the established procedures of the enterprise.

c. While considering the request, the employer shall take into account the compatibility of nature of the work and employee with telecommuting as well as other criteria determined by the employer.

Article 14(3) provides that, in principle, the result of the employer`s consideration with respect to the request shall be notified to the employee within thirty days, in accordance with the procedure that the employee followed while making the request. It is noteworthy that requests for return to working at workplace shall be considered by the employer preemptively as per Article 14(5). In the event that the request is accepted, agreement shall be made in accordance with the Article 5 of the Regulation.

According to the Article 14(6), in cases where telecommuting will be exercised in whole or a part of the workplace due to a force majeur event stated in the legislation, it will not be necessary to seek the employee`s request or approval in order to transition to telecommuting.

III. Conclusion

With the provisions introduced in the Regulation, employers and employees will now be able to benefit from a specific legal framework regarding telecommuting. In addition, given that telecommuting/remote working is becoming a more conventional method for many businesses rather than the exception, it is expected that the judiciary will be able to resolve any relevant dispute in a faster and clearer manner by virtue of the Regulation.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2021. A link to the full Legal Insight Quarterly may be found here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.